2018 UT App 24

THE UTAH COURT OF APPEALS

UTAH DEPARTMENT OF TRANSPORTATION,

Appellant,

v.

TARGET CORPORATION AND 

WEINGARTEN/MILLER/AMERICAN FORK LLC,

Appellees.

Opinion

No. 20160122-CA

Filed February 8, 2018

Fourth District Court, American Fork Department

The Honorable Thomas Low

No. 090102037

Sean D. Reyes, Barbara E. Ochoa, William H. 

Christensen, and Stanford E. Purser, Attorneys for

Appellant

Kevin E. Anderson and Jason E. Wilkinson, 

Attorneys for Appellee Target Corporation

Jeffrey W. Appel, Matthew N. Evans, and Robert P. 

Harrington, Attorneys for Appellee

Weingarten/Miller/American Fork LLC

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES

KATE A. TOOMEY and JILL M. POHLMAN concurred.

HARRIS, Judge:

¶1 One extremely small portion of a massive freeway 

interchange was built on land that the Utah Department of 

Transportation (UDOT) took from claimants Target Corporation 

(Target) and Weingarten/Miller/American Fork LLC (Miller) 

(collectively, Claimants). The vast majority of the interchange 

was constructed upon UDOT’s own land or upon land taken 

from others. Claimants complain that the interchange prevents 
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or impairs motorists from viewing their shopping center, and 

they claim the right to recover severance damages from UDOT 

related to this loss of visibility and related to the loss of a rightout exit1 from the shopping center’s parking lot. The trial court 

allowed that claim to proceed to a jury trial, and a jury awarded 

Claimants more than $2.3 million in severance damages.

¶2 UDOT now appeals, and asserts that the trial court erred 

in even allowing Claimants’ suit for severance damages to reach 

the jury. UDOT asserts that Claimants’ evidence was insufficient, 

regarding both causation and damages, to support their claims. 

For the reasons discussed below, we find UDOT’s arguments 

unpersuasive, and therefore affirm.

BACKGROUND2

¶3 In 2009, UDOT determined that two major highway 

construction projects (the Projects) needed to be built in fastgrowing Utah County. One project involved widening and 

reconstructing Interstate 15 through essentially the entire length 

of Utah County, from Santaquin to the Salt Lake County line. 

This project, in total, was more than twenty-two miles long. The 

other project involved the construction of a new east-west

 

1. A “right-out exit” allows traffic to exit (but not necessarily 

enter) a facility, but only by turning right.

2. Our recitation of the facts is presented in the light most 

favorable to the jury’s verdict, and comes from the testimony 

and evidence developed at trial. See Smith v. Fairfax Realty, Inc., 

2003 UT 41, ¶ 3, 82 P.3d 1064 (on review from the denial of a 

motion for a directed verdict, an appellate court recites facts in 

the light most favorable to the verdict). During the trial, the jury 

heard testimony from several witnesses, including five 

engineers, two expert appraisers, and a representative of Target 

with experience in shopping center development.
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arterial road from American Fork through Lehi to Saratoga 

Springs. This project, in total, was seven miles long. The two 

Projects intersect at a point in American Fork where Main Street

crosses I-15. Before the Projects, there was already a freeway 

interchange at the site, allowing motorists to cross I-15 on Main 

Street via an overpass, or get on or off I-15 at that same location. 

The Projects called for the widening of both I-15 and American 

Fork Main Street, and therefore UDOT found it necessary to 

completely rebuild the existing freeway interchange (the 

Interchange).

¶4 In order to facilitate construction of the new Interchange

at that location, UDOT condemned various properties, including 

three relatively small portions3 of the Alpine Valley Shopping 

Center (the Shopping Center), a mall owned largely by 

Claimants that is located on the northeast corner of the 

Interchange. The Shopping Center is a large retail facility with 

many stores and shops. It has one major “anchor” tenant—

Target—as well as other smaller retail stores, and includes a 

large outdoor parking lot. Claimants’ witnesses testified at trial 

that the Shopping Center is designed to draw customers from a 

large regional area, and that customers are drawn there due to 

“ease of access and convenience, and knowing how to get there 

by visibility or good signage.” Target owns the land on which its

store is located, and Miller owns most of the Shopping Center’s 

remaining land. Both Target and Miller share a parking lot, and 

also share a cross-easement across the entirety of the Shopping 

Center. The shared parking lot abuts Main Street, and prior to 

completion of the Projects a driver could easily access 

northbound I-15 by making a right-hand turn out of the south 

side of the parking lot, driving briefly westbound along Main 

 

3. Two of these three parcels were taken in fee simple, and the 

third was taken in the form of a perpetual slope easement. The 

two parcels taken in fee simple were very small (756 and 928 

square feet, respectively). The slope easement is larger, 

comprising 8,825 square feet.
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Street, and then merging onto northbound I-15. The original 

northbound I-15 on-ramp was “at grade”—on the same level—

with Main Street.

¶5 UDOT chose to rebuild the Interchange using an

innovative “diverging diamond” design, which is “a very 

unique cross-over type interchange” that involves cars 

temporarily driving on the left side of the road. Significantly for 

present purposes, a diverging diamond design requires a lot of 

space, and in this case that design required that the bridge over 

the freeway be built higher than other design options, and also 

required much larger and higher on- and off-ramps. To take one 

specific example, the northbound I-15 on-ramp was raised from 

“at grade” (in the before condition) to a height of some twentythree feet (in the after condition). The new Interchange’s increase 

in height affected Claimants’ property and the surrounding area 

in several ways.

¶6 First, the heightened overpass and raised northbound I-15 

on-ramp required UDOT to gradually raise the elevation of Main 

Street as it approached the Interchange. Because Main Street 

itself was being raised, UDOT determined that, “for safety 

reasons,” it could no longer permit right-out access from the 

south end of the Shopping Center onto the now-heightened

Main Street, although UDOT was able to preserve right-in access 

from westbound Main Street into the parking lot. In connection

with closing this right-out exit, UDOT took from Claimants one 

small rectangular parcel located on the south side of the shared 

parking lot, along Main Street. UDOT did not build any portion 

of the Interchange on this parcel. Prior to the taking, the rightout exit was the most heavily used exit in the parking lot, due to 

its proximity to the northbound I-15 on-ramp. After the taking, 

the closure of the right-out exit required all traffic exiting the 

parking lot to use an intersection located along the east side of 

the Shopping Center, along Kawakami Drive.

¶7 Next, to facilitate construction of the heightened 

northbound I-15 on-ramp, UDOT built a retaining wall along the 
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northbound on-ramp. In order to support the retaining wall, 

UDOT found it necessary to construct an earthen slope alongside 

the retaining wall. UDOT did not, however, have enough space 

on its own property for the entire dirt support slope, so UDOT 

took a perpetual “slope easement” across a long, narrow parcel 

of Claimants’ land that runs alongside the northbound I-15 onramp. UDOT then placed a large amount of dirt on the slope 

easement, creating a slope that supported the retaining wall that, 

in turn, supported the raised on-ramp onto northbound I-15. 

While the retaining wall itself is not located on the slope 

easement, the dirt slope supporting the retaining wall is at least 

partially located on the slope easement.4

¶8 At trial, Target’s representative testified that UDOT 

informed him that “it was not feasible to maintain the right-out

[exit] due to the new construction, the design, specifically, of this 

diverging diamond.” However, no other witness at trial testified 

that the condemnation of Claimants’ specific parcels was

“essential to the completion of the project as a whole.” See Ivers 

v. Utah Dep’t of Transp., 2007 UT 19, ¶ 21, 154 P.3d 802, overruled 

in part on other grounds by Utah Dep’t of Transp. v. Admiral Beverage 

Corp., 2011 UT 62, 275 P.3d 208 (holding that a claimant is 

 

4. UDOT correctly points out that Claimants introduced no 

exhibit or testimony demonstrating exactly where the 

boundaries for the slope easement were located, or 

demonstrating exactly how much of the dirt slope ended up 

being located on the slope easement. But it is clear from the trial 

testimony that at least some of the dirt slope supporting the 

northbound I-15 on-ramp is located on the slope easement, and 

therefore is located on property owned by Claimants. In 

addition, during oral argument, UDOT’s counsel acknowledged 

that UDOT placed the dirt slope at least partially on Claimants’ 

property. Moreover, one of the jury instructions proposed by 

UDOT and submitted to the jury stated that UDOT acquired the 

slope easement “for the purpose of constructing and maintaining 

slopes on the property as part of the Project[s].”
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entitled to severance damages related to a view-impairing 

structure “built on property other than that which was 

condemned” only “if the use of the condemned property is 

essential to the completion of the project as a whole”).

¶9 Claimants also presented evidence that completion of the 

Interchange affected the visibility—defined as the ability of 

others to view into the property, see id. ¶ 12—of the Shopping 

Center. Prior to the Projects, motorists moving in any direction 

on I-15 or Main Street could easily see the Shopping Center as 

they were driving. After the Projects, by contrast, visibility into 

the Shopping Center decreased, chiefly because of the larger and 

taller Interchange. Parts of the Interchange, including the taller 

and wider bridge over the freeway, as well as new or taller 

retaining walls and raised on- and off-ramps, now impair

motorists’ view of the Shopping Center. Claimants argued that 

they were entitled to be compensated not just for the value of the 

parcels that were taken, but also for “severance damages” 

representing the full loss of the market value of the Shopping 

Center caused by the taking, including diminution in value 

caused by reduced visibility and access.

¶10 In support of this contention, Claimants presented 

testimony from an expert appraiser (Appraiser). Appraiser 

valued Claimants’ remaining property twice, once in the 

“before” condition, as though the Interchange had never been 

built, and once in the “after” condition, taking into account any 

effect that the Interchange had on the property’s value. 

Appraiser explained that the difference in these values 

constituted the measure of Claimants’ severance damages. 

Appraiser concluded that Claimants’ remaining property was 

worth approximately 7.5% less in the “after” condition than in 

the “before” condition, and he calculated Claimants’ severance

damages, based on that conclusion, as more than $2.3 million. 

Appraiser testified that there were two main factors that 

contributed to the property’s diminution in value: loss of 

visibility, largely because of the presence of the larger and taller

Interchange, and loss of the right-out exit onto Main Street. 
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However, Appraiser did not attempt to provide any specific 

values for these individual components of loss—that is, 

Appraiser did not provide the jury with any specific amounts for 

damages related to loss of the right-out exit alone, or for 

damages related to loss of visibility alone, or for damages related 

to loss of visibility related to any specific component of the 

Interchange. At the close of Claimants’ case, UDOT moved for a 

partial directed verdict on the issue of severance damages, 

arguing that Claimants should not be allowed to recover 

severance damages at all. Specifically, UDOT argued that

Claimants failed to “elicit[] any testimony from any witness that 

this property was essential to the project as a whole,” and 

therefore their claim for severance damages was infirm under 

the rubric set forth in Ivers, 2007 UT 19, ¶ 21. The trial court 

denied UDOT’s motion, reasoning that although no witness

explicitly testified that UDOT’s takings were “essential to the 

project as a whole,” the evidence was nonetheless sufficient to 

potentially support a finding that the takings were “essential.”

¶11 After deliberation, the jury awarded Claimants a total of

$87,910 for the value of the property interests that UDOT 

actually took (the two small parcels taken in fee simple plus the 

perpetual slope easement). In addition, the jury awarded 

Claimants a combined $2,381,294 in severance damages. UDOT 

takes issue with the severance damages portion of the jury’s 

verdict, and first expressed its displeasure with this award by 

asking the trial court to enter a judgment notwithstanding the 

verdict, again asserting that Claimants “failed to establish 

through testimony of any fact or expert witness that the property 

taken by [UDOT] was ‘essential to the completion of the project 

as a whole.’” The trial court denied that motion.

ISSUES AND STANDARD OF REVIEW

¶12 UDOT now appeals the award of severance damages to 

Claimants, and asserts that the trial court should have granted 

its motions for partial directed verdict and/or for judgment 
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notwithstanding the verdict on that issue. We review a trial 

court’s denial of a motion for directed verdict for correctness. 

Proctor v. Costco Wholesale Corp., 2013 UT App 226, ¶ 6, 311 P.3d 

564. Likewise, we review for correctness a trial court’s denial of a 

motion for judgment notwithstanding the verdict. Neff v. Neff, 

2011 UT 6, ¶ 49, 247 P.3d 380. On either a motion for directed 

verdict or a motion for judgment notwithstanding the verdict, 

we will reverse the trial court’s ruling “only if, viewing the 

evidence in the light most favorable to the prevailing party, we 

conclude that the evidence is insufficient to support the verdict.” 

Lawrence v. MountainStar Healthcare, 2014 UT App 40, ¶ 18, 320 

P.3d 1037 (citation and internal quotation marks omitted).

ANALYSIS

¶13 It is a bedrock principle of both the federal and state 

constitutions that the government cannot take a citizen’s 

property for public use without paying that citizen “just 

compensation” for the value of the property taken. See U.S. 

Const. amend. V; see also Utah Const. art. I, § 22. “The policy 

behind Utah’s constitutional provision is to ensure that the 

burden for damage done to private property is ‘distributed 

among all the taxpayers’ rather than ‘upon those only who 

sustained the injury.’” See Utah Dep’t of Transp. v. Admiral 

Beverage Corp., 2011 UT 62, ¶ 21, 275 P.3d 208 (quoting Kimball v. 

Salt Lake City, 90 P. 395, 397 (Utah 1907)). The constitutional 

guarantee of “just compensation” “is triggered when there is any 

substantial interference with private property which destroys or 

materially lessens its value, or by which the owner’s right to its 

use and enjoyment is in any substantial degree abridged or 

destroyed.” Id. ¶ 22 (citation and internal quotation marks 

omitted). There exist “two broad categories of takings”: physical 

takings and regulatory takings. Alpine Homes, Inc. v. City of West 

Jordan, 2017 UT 45, ¶ 18. This case involves a physical taking.

¶14 A physical taking is the most obvious kind of taking, and 

occurs when the government physically appropriates a citizen’s 
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property. See View Condo. Owners Ass’n v. MSICO, LLC, 2005 UT 

91, ¶ 31, 127 P.3d 697. Certainly, a landowner is entitled to 

compensation when the government undertakes a “physical 

invasion or permanent occupation of his or her property.” 

America West Bank Members, LC v. State, 2014 UT 49, ¶ 32, 342 

P.3d 224 (citation and internal quotation marks omitted). There 

are several different types of physical takings, including, for 

instance, an outright fee-simple taking as well as the taking of a 

more limited property interest such as an easement. See Utah 

Code Ann. § 78B-6-502 (LexisNexis 2012) (providing that “fee 

simple” ownership and “easement[s]” are both “rights in lands 

[that] are subject to being taken for public use”). In this case, the 

jury determined that Claimants were entitled to $87,910 as “just 

compensation” for UDOT’s three physical takings. No party has 

appealed that portion of the jury’s decision.

¶15 When the land that is condemned constitutes only a 

portion of a larger parcel, a landowner may be entitled to more 

than merely the market value of the portion of the land that is 

actually taken. Specifically, the landowner may be entitled to 

“severance damages” for any diminution in the value of the 

remaining portion of the landowner’s property, as long as the 

landowner can demonstrate that the diminution in value was

caused by the taking. See id. § 78B-6-511(2) (LexisNexis 2012)

(stating that, “if the property sought to be condemned 

constitutes only a part of a larger parcel,” a landowner may 

recover “the damage[] which will accrue to the portion not 

sought to be condemned by reason of its severance from the 

portion sought to be condemned”); see also Severance Damages, 

Black’s Law Dictionary (10th ed. 2014) (defining “severance 

damages” as “compensation awarded to a landowner for the loss 

in value of the tract that remains after a partial taking of the 

land”).

¶16 The “cardinal and well-recognized rule” regarding the 

measure of severance damages is that a landowner is entitled to 

recover “the difference in market value of the property before 

and after the taking.” See Admiral Beverage, 2011 UT 62, ¶ 30 
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(citation and internal quotation marks omitted); see also id. ¶ 31 

(stating that a court, “in order to correctly evaluate . . . severance 

damages,” must view those damages “in the composite as it will 

be after the taking and after the improvement has been 

constructed”). After a four-year detour to the contrary, our 

supreme court has now determined that severance damages may 

include damages resulting from the property’s reduced visibility. 

See id. ¶¶ 15–19 (overruling Ivers, 2007 UT 19, ¶¶ 11–15, and 

stating that “when a landowner suffers the physical taking of a 

portion of his land, he is entitled to severance damages 

amounting to the full loss of market value in his remaining 

property caused by the taking,” including damages for loss of 

visibility). A landowner bears the burden of proving an 

entitlement to a specific amount of severance damages. State ex 

rel. Road Comm’n v. Williams, 452 P.2d 548, 549–50 (Utah 1969).

¶17 An entitlement to severance damages exists, however, 

only if landowners can show a causal link between the taking of 

a portion of their land and the diminution in the value of the 

remainder. See Ivers, 2007 UT 19, ¶ 18 (stating that “[w]hether 

severance damages are awardable hinges on whether the 

severance of the condemned property, and the use of that

property, caused damage to the remaining property”); see also

Utah Dep’t of Transp. v. D’Ambrosio, 743 P.2d 1220, 1222 (Utah 

1987) (stating that a landowner is entitled to recover severance 

damages “caused by the taking of a portion of the parcel of 

property where the taking or the construction of the 

improvement on that part causes injury to that portion of the 

parcel not taken”); Utah Code Ann. § 78B-6-511(2) (providing 

that recoverable severance damages consist of those damages 

incurred “by reason of [the remaining parcel’s] severance from 

the portion sought to be condemned”).

¶18 In this case, Claimants assert entitlement to two types of 

severance damages. First, Claimants maintain that their 

remaining property has diminished in value due to loss of 

visibility that they claim has resulted from the construction of 

the new Interchange. Second, Claimants assert that their 
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remaining property has diminished in value because of the loss 

of the right-out exit onto American Fork Main Street. For its part, 

UDOT asserts that Claimants have not presented sufficient 

evidence to support their claim to either type of severance 

damages, but for different reasons.

A. Severance Damages for Loss of Visibility

¶19 With regard to Claimants’ assertion that they are entitled 

to severance damages for loss of visibility, UDOT maintains that 

Claimants have not presented sufficient evidence of the 

necessary causal link between the taking of their property and 

their claimed severance damages.

¶20 There are two methods by which a landowner can 

demonstrate the requisite causal link. First, if the visibility issues 

stem from a “structure” that is built upon the part of the 

property that was taken, causation is presumed. See Ivers, 2007 

UT 19, ¶ 20 (stating that “when the state condemns a portion of 

land and builds a view-impairing structure directly on that land, 

the damage to the remaining property is recoverable . . . because 

when the condemned land is used for the construction of the 

view-impairing structure, the damage to the remaining property 

is clearly caused by the severance”). Second, if the visibility 

issues stem from a “structure” that was not built on the part of 

the property that was taken, causation is not presumed, and the 

property owner is entitled to severance damages only if it can 

demonstrate that “the use of the condemned property is 

essential to the completion of the project as a whole.” Id. ¶ 21.

¶21 The main thrust of UDOT’s arguments, both before the 

trial court and on appeal, is that Claimants have not established, 

through competent evidence, that their parcels were “essential” 

to the Projects as a whole, and therefore cannot avail themselves 

of the second method of proving severance damages. As noted

above, none of Claimants’ witnesses directly testified that the 

taken parcels were “essential” to the Projects as a whole.
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¶22 Claimants, however, maintain that they can demonstrate 

causation through the first method, and that they therefore need 

not prove that the taken parcels were “essential to the Projects as 

a whole.” Specifically, Claimants assert that the view-impairing 

structure is the entire Interchange, and they argue from that 

premise that, because part of the Interchange (the dirt slope 

supporting the retaining wall on the northbound I-15 on-ramp) 

was built on their property, causation for severance damages 

should be presumed. UDOT disagrees, and posits that the viewimpairing “structure” is not the entire Interchange but, instead, 

the specific component parts of the Interchange (such as the 

raised freeway overpass, or new retaining walls on the southern 

end of the Interchange), only one of which (the northbound I-15 

on-ramp) was even partially built on Claimants’ taken property. 

In order to address these arguments, we must confront three 

questions.

1. 

¶23 First, we must determine whether, as a legal matter, a 

view-impairing structure that is only partially constructed upon 

the taken parcel is presumed to have caused severance damages 

to the remaining parcel or, instead, whether the view-impairing 

structure must be constructed entirely upon the taken parcel to 

qualify for a presumption of causation. We conclude that, in 

order to be presumed to have caused severance damages to the 

remaining parcel, a view-impairing structure need not be 

entirely constructed within the taken parcel.

¶24 We draw support for this conclusion from Utah State Road 

Commission v. Miya, 526 P.2d 926 (Utah 1974). In that case, the 

state condemned, for a road construction project, one small part 

(comprising less than one acre) of a forty-four-acre parcel owned 

by the claimant. Id. at 927. As part of that project, the state then 

constructed a “viaduct” over some adjacent railroad tracks. Id. at 

928. While it is not entirely clear from the opinion, it appears that 
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the viaduct was at least partially constructed upon the land 

taken from the claimant.5 Id. The claimant asserted a right to 

recover severance damages related to the loss of view on its 

remaining acreage caused by the construction of the viaduct. Id.

at 929. The trial court awarded claimant $8,000 in severance 

damages, and our supreme court affirmed, holding that “the loss 

of view occasioned by a proposed public structure to be erected, 

in part at least upon a parcel of property taken by condemnation 

from a unit of property” could be compensated with an award of 

severance damages. Id. (emphasis added) (citations omitted).

¶25 Indeed, we cited this portion of Miya when we considered 

the Ivers case. See Utah Dep’t of Transp. v. Ivers, 2005 UT App 519, 

¶ 23 & n.6, 128 P.3d 74, rev’d in part on other grounds, 2007 UT 19, 

154 P.3d 802. In so doing, we noted that the rule set forth in 

Miya—“requiring the view-obstructing improvement to be 

constructed, at least partially, upon the land severed from the 

condemnee”—is in keeping “with the principles recognized in 

both earlier and later Utah cases.” Id. (emphasis added). While 

our supreme court has not directly addressed this issue since 

Miya, that court’s opinions in Ivers and Admiral Beverage contain 

language indicating continued support of the rule set forth in 

Miya. See Admiral Beverage, 2011 UT 62, ¶ 2 (noting that “[n]o part 

of the I-15 freeway itself is located on or touches Admiral’s 

 

5. This court has read Miya in this manner once before. In this 

court’s decision in Utah Department of Transportation v. Ivers, 2005 

UT App 519, 128 P.3d 74, rev’d in part on other grounds, 2007 UT 

19, 154 P.3d 802, we noted some uncertainty about whether the 

viaduct in the Miya case was partially constructed on the taken 

property, but concluded that Miya could not plausibly be read 

any other way. Id. ¶ 23 & n.6 (stating that, “[i]n Miya, the viaduct 

was constructed, in part, on the land taken from the 

landowners,” and noting in a footnote that the court’s “reliance 

on” a particular quotation “indicates that the viaduct was built, 

at least in part, upon a parcel of property taken from the 

landowners”).
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property” (emphasis added)); Ivers, 2007 UT 19, ¶ 3 (noting in 

support of its rejection of claimant’s severance damages claim 

that “[n]o portion of the raised highway, its footings, or its 

foundation was constructed on the condemned land” (emphasis 

added)).

¶26 Further support for our conclusion can be found in case 

law from other jurisdictions that, like ours, allow recovery of 

severance damages for loss of visibility.6 At least some of those 

courts have held that such damages are recoverable even where 

the view-impairing structure is built only partially on the taken 

property. See, e.g., State v. Strom, 493 N.W.2d 554, 561 (Minn. 

1992) (holding that where “property taken by the state from the 

abutting owner was used” to build a view-obstructing structure, 

the landowner may recover severance damages for loss of 

visibility); id. at 564 (Simonett, J., concurring) (noting specifically 

that “the embankment [that obstructs visibility] is partially on 

land taken” from the landowner (emphasis added)).

¶27 We also note that UDOT appeared to concede this point at 

oral argument. In response to questioning from the court, UDOT 

conceded that Claimants would, at least theoretically, be entitled 

to severance damages for loss of visibility caused solely by the 

northbound I-15 on-ramp, because UDOT conceded that the onramp (although not necessarily the Interchange) was at least 

partially constructed on property taken from Claimants.7 As 

 

6. Some jurisdictions (including our own from 2007 to 2011, see 

Ivers, 2007 UT 19, ¶¶ 11–15) do not allow any recovery of 

severance damages for loss of visibility. See, e.g., Department of 

Transp. v. Marilyn Hickey Ministries, 159 P.3d 111, 116 (Colo. 

2007); see also 7A Nichols on Eminent Domain, § G9A.04[4][c][iii]

(Matthew Bender, 3rd ed.).

7. UDOT’s concession here was limited because, as discussed 

below, UDOT points out that Claimants presented to the jury 

only a total composite figure comprising all of its claimed 

(continued...)
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noted elsewhere herein, the only part of the northbound onramp (for that matter, the only part of the entire Interchange) 

that was constructed on Claimants’ property is part of the slope 

supporting the on-ramp’s retaining wall. By conceding a 

theoretical entitlement to severance damages for loss of visibility 

caused by the northbound on-ramp, UDOT was necessarily 

conceding the point that a structure, in order to be considered to 

have presumptively caused severance damages, does not have to 

be entirely constructed on land taken from the claimant.

2. 

¶28 Second, we must determine what the “structure” is for 

purposes of the causation analysis. There are three possibilities. 

First, “structure” could be defined extremely broadly, to mean 

the entirety of the freeway Projects in question. Neither party 

advocates for this position, and we conclude that this position is 

foreclosed by applicable case law. Second, the “structure” in 

question could be the Interchange, in its entirety. Claimants 

advocate for this position. Third, the “structure” in question 

could be the individual component parts of the Interchange that 

are alleged to have affected Claimants’ visibility. UDOT 

advocates for this position. We find Claimants’ position most 

persuasive.

¶29 The “structure” in question cannot be the entirety of the

Projects. This possibility has already been rejected by our 

 

(...continued)

severance damages, and did not endeavor to itemize or 

individually value each part of their claimed severance damages 

(such as, for instance, loss of visibility solely due to the presence 

of the northbound on-ramp). UDOT therefore takes the position 

that, even though Claimants would be theoretically entitled to 

recover severance damages for loss of visibility caused by the 

northbound I-15 on-ramp, Claimants’ specific evidence for this 

item of severance damages was insufficient.
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supreme court. In State v. Harvey Real Estate, 2002 UT 107, 57 P.3d 

1088, the court stated that severance damages were available for 

“damages caused by the construction of the improvement made 

on the severed property,” and emphasized that severance 

damages cannot include “damages caused by other facets of the 

construction project.” Id. ¶ 10; see also id. (noting that the court 

would not allow a landowner to “present evidence of all 

damages conceivably stemming from” a “multi-mile-length road 

construction project,” and certainly not “those damages 

attributable to construction occurring miles away”). Likewise, in 

Ivers, the court refused to allow an award of severance damages 

caused by the loss of view resulting from the construction of a 

raised highway, when the land taken from the claimant was 

used only for construction of a small portion of a frontage road 

that, while inarguably part of the same overall construction

project, was itself separate from the raised highway. See Ivers, 

2007 UT 19, ¶¶ 1, 17 (stating that the claimant’s land “was 

condemned as part of a single project to build a structure that 

would impair the view from the remaining property, but in 

which that structure was not built on the severed land”). Thus, 

the “structure” in question must be defined more narrowly than 

by reference to the entire multi-mile Projects constructed here.

¶30 While reference to the entirety of the two multi-mile 

Projects is far too broad, we perceive UDOT’s position as too 

narrow. UDOT asserts that the “structure” in question is not the 

Interchange in its entirety but, rather, its specific individual 

components—for instance, the raised overpass, the raised 

northbound on-ramp, new retaining walls and sound walls—

that Claimants assert impair the Shopping Center’s visibility. 

UDOT concedes that at least a portion of the northbound onramp was built on Claimants’ property, and therefore makes at 

least a theoretical concession that Claimants would be entitled to 

severance damages resulting from loss of visibility caused 

directly by the presence of the new northbound on-ramp. But 

UDOT maintains that it should not have to pay severance 

damages for loss of visibility caused by any other component 
UDOT v. Target Corporation

20160122-CA 17 2018 UT App 24

part of the Interchange, because none of the other parts of the 

Interchange were even partially constructed on Claimants’ land.

¶31 We disagree, because we view the Interchange as one 

interconnected structure. Each part of the Interchange has some 

effect on the others, all stemming from UDOT’s choice of a 

“diverging diamond” design. That design choice required a 

raised and widened freeway overpass, as well as raised on- and 

off-ramps. The raised on- and off-ramps, in turn, required new 

and higher retaining walls and slope supports. It seems to us 

unduly artificial to require a condemnation claimant to break a 

freeway interchange into component parts for the purpose of 

proving a claim to severance damages.8 We also wonder 

whether we could, on any principled basis, halt the sub-dividing 

process once it begins.9

 

8. If the structure in question were a building instead of a 

freeway interchange, the analysis would be clearer. It would 

make little sense to say that a claimant could recover severance 

damages for loss of visibility occasioned by a single part or 

feature of a building (say, a wing of the building, or an awning, 

column, or steeple) but could not recover severance damages for 

loss of visibility occasioned by other parts of that same building. 

While we concede that a building is perhaps more clearly one 

contiguous “thing” than a freeway interchange is, we cannot 

conceive of any principled basis upon which to distinguish the 

two scenarios.

9. As noted, UDOT conceded that Claimants have at least a 

theoretical entitlement to severance damages caused by loss of 

visibility related to the northbound on-ramp. But absent that 

concession, UDOT could potentially have argued that only the 

dirt slope support was actually constructed on Claimants’ 

property, while the actual retaining wall and the rest of the onramp were not. If we permit UDOT to subdivide the Interchange 

down into its component parts (e.g., bridges and on-ramps), we 

(continued...)
UDOT v. Target Corporation

20160122-CA 18 2018 UT App 24

¶32 We are also guided by our supreme court’s language in 

Ivers and Admiral Beverage. In those cases, it appears that the 

court thought of the “structure” in broader terms than UDOT 

now advocates. For instance, in Ivers and Admiral Beverage, the 

court referred to the structure in question as simply “the raised 

highway” or “the I-15 freeway,” rather than to individual onramps or retaining walls. See Ivers, 2007 UT 19, ¶¶ 1, 3; Admiral 

Beverage, 2011 UT 62, ¶ 2.

¶33 Moreover, in Admiral Beverage, the supreme court 

overruled its own previous holding, outlined in Ivers, that loss of 

visibility damages were not recoverable as part of severance 

damages. See Admiral Beverage, 2011 UT 62, ¶¶ 17–19. The court 

did so, in part, because it deemed the Ivers rule “unworkable in 

practice” because of the difficulty encountered by appraisers 

who were asked, under the Ivers rule, to “assign specific values” 

to loss of visibility damages as part of an overall severance 

damages analysis. Id. ¶ 39; see also id. ¶ 41 (noting that the Ivers

rule required appraisers to “resort to rank speculation when 

attempting to exclude the loss of visibility from fair market 

value”). The court applied a holistic approach to severance 

damages, determining that such damages are computed by 

simply “comparing the market value of the portion of property 

not taken with its market value before the taking.” Id. ¶ 30; see 

also City of Hildale v. Cooke, 2001 UT 56, ¶ 20, 28 P.3d 697 (noting 

the “cardinal and well-recognized rule” that severance damages 

consist of “the difference in market value of the property before 

and after the taking” (citation and internal quotation marks 

omitted)). It would be inconsistent with this overall approach to 

require Claimants’ appraisers to engage in a similarly 

speculative effort to isolate the severance damages caused by 

 

(...continued)

are aware of no principle that would prevent condemnors from 

subdividing each component part into its own respective subparts (e.g., retaining walls, slope supports).
UDOT v. Target Corporation

20160122-CA 19 2018 UT App 24

one component part of a freeway interchange separate from 

those severance damages caused by another.

¶34 Accordingly, we view the “structure” in question as the 

Interchange, rather than as the Projects or as the Interchange’s 

individual component parts.

3. 

¶35 Finally, after answering the first two questions, we must 

determine whether, as a factual matter, the structure (as we have 

defined it) was at least partially constructed upon the taken 

parcel. It should be evident by now that it was.

¶36 As described above, one extremely small part (the slope 

supporting a retaining wall that is part of the northbound I-15 

on-ramp) of the Interchange was built on land taken from

Claimants. Under these circumstances, Claimants are entitled to 

recover severance damages caused by loss of visibility resulting 

from construction of the entire Interchange.10 The structure in 

 

10. We are aware that, in some cases, it may be difficult to 

determine where an “interchange” begins and ends. In this case, 

however, as far as we are aware, all of the items that were 

described as part of the cause of Claimants’ severance damages 

for loss of visibility (e.g., the raised freeway overpass, the 

northbound I-15 on-ramp, the new retaining walls) are 

unquestionably part of the Interchange. However, we note that, 

at oral argument and at one point in its reply brief, UDOT made 

some mention of “sound walls” that it claimed were quite a 

distance away from the Shopping Center. This argument was not 

well-developed in UDOT’s briefing, and as a result we are not 

certain exactly which “sound walls” UDOT is referring to or 

where they are located, or whether UDOT is even attempting to 

argue that the sound walls in question are not part of the 

Interchange. We note simply that we consider any such claim on 

UDOT’s part—that some of the items included as causes of 

(continued...)
UDOT v. Target Corporation

20160122-CA 20 2018 UT App 24

question—the Interchange—was at least partially built on land 

taken from Claimants, and these facts entitle Claimants to take 

advantage of the presumption that the severance damages they 

suffered as a result of the construction of the Interchange were 

incurred “by reason of the severance.” See Utah Code Ann. 

§ 78B-6-511(2) (providing that recoverable severance damages 

consist of those damages incurred “by reason of [the remaining 

parcel’s] severance from the portion sought to be condemned”); 

see also Ivers, 2007 UT 19, ¶ 20 (stating that “when the 

condemned land is used for the construction of the viewimpairing structure, the damage to the remaining property is 

clearly caused by the severance”).

¶37 Thus, with regard to their claims for severance damages 

for loss of visibility, Claimants are able to demonstrate the 

requisite causal link through the first method—by showing that 

the view-impairing structure (the Interchange) was at least 

partially constructed on their former land. With regard to those 

damages claims, it is not necessary for Claimants to prove that 

the taken parcels were “essential” to the Projects as a whole. The 

trial court therefore did not err by allowing Claimants’ suit for 

severance damages for loss of visibility to proceed to a jury trial.

B. Severance Damages for Loss of the Right-Out Exit

¶38 This does not end our analysis, however, because there is 

another component of severance damages to which Claimants 

assert entitlement: severance damages associated with loss of the 

right-out exit onto Main Street. At oral argument, UDOT 

conceded that Claimants were theoretically entitled to recovery 

of this component of severance damages, but maintained that 

Claimants had not presented sufficient evidence of damages 

with regard to that claim. We find UDOT’s arguments 

 

(...continued)

Claimants’ loss of visibility damages may not be part of the 

Interchange—to be inadequately briefed and developed.
UDOT v. Target Corporation

20160122-CA 21 2018 UT App 24

unpersuasive, and agree with Claimants that they presented 

sufficient evidence of their claimed severance damages.

¶39 “[T]he proper measurement of severance damages is 

determined by comparing the market value of the portion of 

property not taken with its market value before the taking.” See 

Admiral Beverage, 2011 UT 62, ¶ 30. Prior to Admiral Beverage, 

under the rule set out in Ivers under which claimants could 

recover for loss of view but not for loss of visibility, see Ivers, 

2007 UT 19, ¶¶ 11–15, appraisers could not simply state their 

conclusions in such straightforward before-and-after terms. 

Instead, they had to attempt to “assign specific values to [some] 

of the numerous factors affecting market value, including any 

decrease in value due to loss of visibility.” See Admiral Beverage, 

2011 UT 62, ¶ 39. Our supreme court noted that this task was 

“extreme[ly] difficult[], if not impossibl[e],” for appraisers to 

accomplish without resorting to “rank speculation.” Id. ¶ 41. 

Partially for this reason, our supreme court overruled its holding 

in Ivers that condemnation claimants could not recover 

severance damages for loss of visibility. Ever since Admiral 

Beverage, condemnation claimants have been able to assert claims 

to a full complement of severance damages, measured using a 

simple before-and-after metric, and limited only by general 

notions of causation and evidentiary proof.

¶40 Thus, there is no requirement, in Admiral Beverage or in 

any other case of which we are aware, that Claimants must 

present their severance damages on a line-item basis, including a 

discrete value for, specifically, damages suffered by virtue of the 

loss of the right-out exit.11 Claimants are free to present their 

 

11. There is a statutory mandate that, in condemnation cases, “as 

far as practicable compensation shall be assessed for each source 

of damages separately.” See Utah Code Ann. § 78B-6-511 

(LexisNexis 2012). UDOT makes passing mention of this statute 

in its brief, but makes no argument that this statute should be 

(continued...)
UDOT v. Target Corporation

20160122-CA 22 2018 UT App 24

severance damages evidence in a more general way, by 

presenting to the factfinder evidence of what the property was 

worth prior to the taking, and what it is worth after the taking.12

¶41 In this case, Claimants did just that, and we find no legal 

infirmity in their efforts. Appraiser concluded that Claimants’ 

remaining property was worth approximately $2.3 million less 

after the Interchange was built than it was before construction 

began. Appraiser testified that there were two main factors that 

contributed to the property’s diminution in value—loss of 

 

(...continued)

read in a manner that would put it at odds with our supreme 

court’s analysis in Admiral Beverage.

12. Despite the difficulty of the endeavor, as described in Admiral 

Beverage, 2011 UT 62, ¶¶ 38–39, it may be true that, in some cases 

and under some factual circumstances, appraisers would be able

to itemize and individually value the various factors that 

comprise the total diminution in value. Where this is possible, 

and where appraisers are comfortable making the attempt, 

claimants may wish to consider presenting such evidence, since 

stating diminution in value only in general terms carries some 

risk. For instance, if we had reached the opposite result in this 

case with regard to Claimants’ entitlement to severance damages 

for loss of visibility for the entire Interchange, and concluded 

instead that Claimants were entitled to severance damages only 

for those two items conceded by UDOT (namely, (a) loss of the 

right-out exit and (b) loss of visibility related to the northbound 

I-15 on-ramp), we would have had to confront the question of 

whether to dismiss those claims for lack of proof, since no 

witness at trial offered any actual damages figure for the jury to 

consider on either of these two specific items, or whether to 

remand the case for a new trial on damages. Claimants dodged 

that bullet here, however, due to our conclusion that Claimants 

are entitled to recovery of all of the categories of severance 

damages for which they sought compensation at trial.
UDOT v. Target Corporation

20160122-CA 23 2018 UT App 24

visibility and loss of the right-out exit. Appraiser’s failure to 

provide specific values for these individual components of loss, 

in particular for loss in value caused by the loss of the right-out 

exit alone, does not render his testimony infirm or inadmissible, 

at least not in this case.

CONCLUSION

¶42 Even though only a small portion of the enormous 

Interchange was actually built on the land UDOT took from 

Claimants, that small portion enables Claimants to take 

advantage of a much easier pathway to prove a causal link

between the taking and their claimed damages. Because the 

Interchange was at least partially built on the taken property, a 

causal link between the taking and Claimants’ severance 

damages for loss of visibility is presumed. Claimants do not 

need to prove that the taking of their parcels was “essential” to 

the Projects as a whole.

¶43 Claimants are likewise entitled to recover severance 

damages for loss of the right-out exit onto Main Street. UDOT 

concedes that Claimants are theoretically entitled to these 

damages. Because we conclude that Claimants are entitled to 

recover each of the categories of severance damages at issue in 

this appeal, it necessarily follows that their damages evidence, 

presented merely in a before-and-after manner, was sufficient on 

the facts of this case.

¶44 Affirmed.